presumption of gift to marital estate overcome only by showing property acquired in exchange for separate property and transfer not intended as gift
How later courts described this case
- presumption of gift to marital estate overcome only by showing property acquired in exchange for separate property and transfer not intended as gift
Written by the judges who cited it.
The opinion
McMILLIAN, Judge.
I concur in the result reached only.
I agree with the majority that the trial court erred in holding that all of the property was marital property. Also, I am in accord with the fact that the Lombard property was non-marital property and *625 should be set apart to Mr. Bowers. I do not agree, however, that the Elmhurst property, purchased with the proceeds derived from non-marital properties owned by Mr. Bowers prior to the marriage is marital property. True, the Elmhurst property was subsequent to the marriage and placed in the names of both spouses as joint tenants, but this only created a presumption that such property was marital property, § 452.-330, subsection 3; but subsection 3 also provides that the presumption is overcome if it is shown that the property was acquired by a method listed in § 452.330, subsection 2(2). Section 452.330(2) declares all property to be marital property if acquired by either spouse subsequent to the marriage except if acquired in exchange for property owned prior to the marriage, § 452.330, subsection 2(2).
If we accept the majority’s analysis, not only do we judicially legislate and substitute our judgment for that of the Legislature, but also we disregard the clear intendment of an unambiguous statute. While we may question the wisdom of the Legislature of enacting this particular statute, yet we should not resort to the guise of construing or interpreting a statute so as to distort the plain import of a legislative enactment. Neither should we assume that the Legislature was ignorant or unaware of prior judicial decisions pertaining to presumptions of gifts. Nor should we assume that the Legislature was ignorant or unaware of other legislative enactments pertaining to the same subject matter. Here we are interpreting a special statute that deals with the dissolution of marriage, disposition of property, separation, child custody and support, which is a code within itself and should not be set aside by either judicial decisions, construing the common law, or other statutory enactments contained in other chapters.
While I recognize that the law does not favor repeal by implication; however, that maxim is inappropriate in the instant case because § 452.330, subsection 2(2) and subsection 3 are clear and unambiguous. Accordingly, I would set apart the Elmhurst property as Mr. Bowers’ sole property.